نشریه تعالی حقوق
سال سیزدهم شماره 1 (بهار 1401)

Despite decades of efforts by the international community against terrorism, especially after the terrorist attacks of 9/11-2001, two decades later, it has not succeeded in suppressing it. Terrorism, on the other hand, is increasingly undermining international peace and security. What the international community has become skeptical about and challenged in the present age through the commission of terrorist crimes is the lack of a proper and universal definition in identifying all aspects and manifestations of this phenomenon. The definition has made the distinction between legitimate and liberating struggles and the use of terrorism and the possibility of abusing the right to self-defense. However, international conventions and even counterterrorism zones, despite providing numerous instances of terrorist offenses, have not yet come up with a single and comprehensive definition of terrorism; While we can refer to war and its definition in the four Geneva Conventions. In addition, the lack of a definition of terrorism can be traced to the lack of a clear structure and framework for achieving consensus between governments and international organizations, according to which a common global definition and approval of terrorism can substantially facilitate the counter-terrorism process.

One of the most important issues related to constitutional institutions is its independence and impunity from the pressure other branches of government. In this regard, the way in which they are selected, and more specifically, the decision-making bodies on their installation, has direct impact on the quality of their work. The more accurate the selection method, the more precise its criteria, and away from political considerations, the more qualified and more independent people are selected. The relationship between the constituency and the appointment of members has two major patterns. Single entity pattern and mixed entity pattern. One of the branches of the second model is the model of parliamentary sovereignty. This model has an important role for parliament in that it elects and approves the final members of the body that assists parliament. Iran has selected half of the members of the Guardian Council to work to determine the extent of its independence. The lack of clarity in the constitution regarding the participation of the judiciary and parliament in the selection of jurists and the interpretation of the Guardian Council's interpretation of limiting parliament's interference with the prediction of the relative majority vote and the gap between the judiciary and the Bar Association and the academic community are problems. It is far from the criteria of the parliamentary majority model.

The crime detection stage is considered as one of the most significant stages of the criminal proceedings. In cases which are related to sexual offenses such as rape and require violating individual privacy ,therefore is a place of conflict between individual and social rights. The first principle in Imamiyeh jurisprudence and, consequently, the criminal law of Iran, is the maximum observance of individual privacy, which requires the impermissibility of invading one’s privacy and failing to detect a crime. Violation of this principle requires a reason. This article, in a descriptive-analytical method and through using library resources, aims to explore the impermissibility of invading individual privacy in sexual crimes. The findings of the study indicate that there is no Quranic or narrative evidence for such cases which prohibits invading individual privacy when there are more important issues, such as the preservation of an innocent person's personal life or the need to prevent further prostitution or extortion of a completely innocent victim and the realization of his or her rights. Hence, such investigations are necessary due to the need to help the oppressed and to counter the spread of prostitution; This matter has not been neglected to some extent by legislators, and in two articles of  241 Q.M.K and 102 D.K, the investigation is permitted by the judicial authority within the scope of the complaint in cases of sexual assault.

Undoubtedly, justice in societies requires precision and proper implementation of laws. Postmodernism and fuzzy logic largely removes the barrier to Aristotelian dualism and the obstacles to the advancement of science. Given the increasing numbers of inmates, the necessity of using postmodern criminology and the use of appropriate and varied responses by legislators to crime seems to be a psychological action based on fuzzy logic. The present study is a descriptive study using survey method and questionnaire in accordance with Islamic Penal Code. Given the increasing number of prisoners, using the fuzzy logic and postmodern criminology, the effect of the two on imprisonment was investigated. The findings of this study show that by establishing a fuzzy system and postmodern forensic investigations of the offender's position and status while committing the crime, judges can issue alternative sentences of imprisonment in light of the conditions provided by law. Thus, both the inflow of prisoners is reduced and the exposure of new damage can be kept away. It would appear that we will move to a more rigorous approach to judicial justice by relying on Islamic jurisprudence and the creation of a fuzzy system in the judiciary and a postmodern view of crime.

The purpose of this study is to analyze the position of good morals in Imami jurisprudence and the Iranian legal system, so the issue of the present study is what is the place of good morals in Imami jurisprudence and the Iranian legal system; Based on the findings of the present study, which has been done analytically and descriptively, the results were obtained that good morality, based on nature and norm, is to limit the will of individuals to protect social interests and it should be the source of legal rule and legal propositions. He knew that in addition to a purely negative role, it also has a positive function and this source, like other sources, is affected by the basis of validity of rules in the legal system. Crimes against good morals are widely mentioned in the jurisprudential chapters and laws of Iran. These crimes are sometimes committed individually. If these crimes are committed in an organized manner, the issue of negligence and veiling will be removed and a serious confrontation will be put on the agenda, especially if this act is done with the intention of disrupting the Islamic system or overthrowing it, in which case It will be subject to titles such as corruption on earth. Also, in order to annul contracts that are against good morals, it is not necessary that there is a specific legal text, but it is enough for the judge to recognize the contract as against good morals and declare it invalid, even if the law is silent about it. This article analyzes the position of good morals in Imami jurisprudence and Iranian law.

The establish of a legal relationship between individuals, whether in the form of a contract or outside it, is inevitable. These legal relationships sometimes appear in the context of debt and claim. In order to guarantee and facilitate the collection of claims, Creditor may have received a security from a debtor in order to take advantage of those securities, in case of impossibility of collection of debts from debtor directly. However, sometimes, After the creation of collateral, basic debt may be the subject of a contract that can be named as a transition collateral contract. There are doubts about how the formation of these types of contracts have an effect on the securities of basic debt. Some believe that after concluding of transition collateral contracts, preceding securities of basic debt will be collapsed; However, others believe that the preceding securities of basic debt will be remain. For each of these views, there are some reasons. In general, the second view seems to be stronger. In this article, the author has tried to examine the reasons for each of the above views from an analytical point of view in order to explain the correct point of view.

Article 61 of The TRIPS Agreement on Guarantee of Criminal Enforcement, the existence of a dispute settlement body and the obligation of the member states of the Organization to legislate and implement national laws with TRIPS,indicate a minimum criminal guarantee. However, it seems that the mere reform of the laws, regardless of the structural reform of the countries, will leave this support in an aura of ambiguity and will lead the countries to the TRIPS Plus process. However, a review of the jurisprudence related to the field of criminal guarantee indicates that the agreement and this organ is a positive step in bringing countries in line with intellectual property standards..